Bounty suspension do-over raises tough questions for NFL

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Strident in defeat on Friday, the NFL likely will impose the same suspensions that were scrapped on Friday by an appeals board established under the Collective Bargaining Agreement.  After all, the players won on a technicality, with the NFLPA finding language in the labor deal that powered a creative argument that Commissioner Roger Goodell didn’t use the right words when fashioning the punishments.

So now Goodell will use the right words, and he will re-issue the penalties that previously were issued against Saints linebacker Jonathan Vilma, Saints defensive end Will Smith, Browns linebacker Scott Fujita, and free-agent defensive end Anthony Hargrove.  But while on the surface it seems like a simple task of writing new suspension letters, the bounty suspensions remain destined for a legal challenge before Judge Berrigan, if the NFL simply repeats the process that it previously used.

As a result, the league now has a chance to make its suspensions less susceptible to reversal.  To get there, the NFL must commit to doing things differently.

For starters, the league should disclose more information to the players.  Too much of the 50,000 pages of evidence has been hidden from the players, and too many of the snippets that have been given to the players and leaked to the media contain serious flaws.  The mere fact that the league’s outside counsel, former prosecutor Mary Jo White, would so clearly mischaracterize the contents of the notorious sideline video from the Vikings-Saints playoff game in 2009 proves that it would be prudent for the league to re-build its case, from scratch.

When putting the evidence together again, the league needs to drop the unreasonable insistence on protecting whistleblowers turned witnesses.  If the league is committed to fairness, the league will persuade the persons who provided information the league plans to use against the players to allow their names to be attached to the evidence.  Witnesses routinely testify in open court on far more controversial matters; if retaliation happens, those who retaliate are punished.  The NFL should be willing to apply a similar procedure.

Most importantly, Commissioner Goodell should consider appointing as the eventual hearing officer someone other than himself, a right that he expressly possesses under the labor deal.  With the NFLPA arguing — and Judge Berrigan apparently agreeing — that Goodell isn’t capable of being impartial, Goodell should exercise his authority to designate the person who will hear the appeal, and he should choose someone from the league office who has had no role in the process.

Ideally, Goodell should agree to delegate the responsibility to Art Shell or Ted Cottrell, the two men who already have jurisdiction over on-field infractions.  (Actually, the re-writing of the suspension letters could result in penalties that fall within their jurisdiction anyway.)

The league’s lawyers already have failed once in their effort to craft suspension letters that survive the appeal process.  It’s now incumbent on the lawyers to engineer a procedure that properly navigates the various competing policies and provisions — and that seems objectively fair to the players.

Regardless of whether, you know, it actually is fair.

63 responses to “Bounty suspension do-over raises tough questions for NFL

  1. If they do re-issue the suspensions and prevail, pray for another Katrina because all the who dat’s will dehydrate do to crying like babies. They’ll need some serious re-hydration.

  2. There were many things in this article I disagreed with… If per the CBA Goodell has authority to levy punishment because of conduct dentrimental, then why should he pass that authority to someone else?

    In regards to the whistleblowers, they were likely given assurance of remaining anonomous throughout the process, so for you simply to emply that the NFL should just “persuade” them to change their mind is much easier said than done. Its possible some of the whistleblowers on the current roster, and coming out would be completely dentrimental to their own careers.

    Not saying it’s right, but that’s the way the CBA spells it out. Goodell conducts his investigation (that included whistleblowers), and he invited the accused to come in and defend themselves. If they chose not to, then by default it’s not unreasonable for him to assume the evidence he’s gotten is true, especially if the accused refuse to come in and refute the claims.

    In regards to the video/audio of someone saying “give me my money”, that can be looked at in 2 ways. The players would argue that it’s “proof” the evidence is flawed. The league would argue that even if they may not have gotten it exactly right of who said it, the fact is that SOMEONE said it, and that cooeberates a lot of their other evidence and testimony from whistleblowers testimony, emails, and powerpoint slides that strongly suggest that there was in fact a monetary reward for injuring players.

  3. When putting the evidence together again, the league needs to drop the unreasonable insistence on protecting whistleblowers turned witnesses. If the league is committed to fairness, the league will persuade the persons who provided information the league plans to use against the players to allow their names to be attached to the evidence.
    Cerrullo doesnt want his name out ther…ooops

  4. Having another hearing, where the league is required to provide proof of the intent to injure, is the victory the players / Saints fans are claiming.

    If Goodell has proof of intent to injure the players should be suspended. If he comes back with rewards for cart-offs where players were paid when the opponent were not injured (i.e. Giants / Bills / Panthers game in ledger, he’s going to lose.

  5. I’m pleased someone called Goodell on his brand of justice. I pray his tenure over the NFL would not b to long. I believe he has harmed the game. Yes, the NFL is making money that said I believe a billy goat could do that.

  6. Man, the first full weekend of games can’t get here fast enough. So tired of bounty gate, 24 hour Tebow coverage, and Ochocinco drama.

  7. Even though Goodell will simply reinstate the suspensions, it’s good that at the very least someone finally called him on his BS.

    Goodell hands down penalties and interpret rules based on the winds of public opinions.

    He’s more concerned with perception than reality and in both Spygate and Bountygate Goodell punished teams based on perceptions, rather than the reality of the situation.

    It’s tough for players and fans to respect someone like that. He fools most of the fans – but not all of them – and certainly doesn’t fool the players.

  8. The players may win a battle but they have to realized they cannot win the war. They agreed to the CBA…they are governed by it.

  9. Good stuff, Mike. If the facts are really there, the commisioner needs to unveil them. Otherwise this “trust us” mentality from the NFL will just not cut it.

  10. “When putting the evidence together again, the league needs to drop the unreasonable insistence on protecting whistleblowers turned witnesses.”

    “if retaliation happens, those who retaliate are punished.”

    I just can’t agree with this. While I’m not in favor of a secret police style society where half the people are reporting on the other half, those who feel that something truly wrong is going on should be able to alert the authorities without the fear that their lives will be torn apart because they chose to do the right thing. Corporations have spent a lot of money to get politicians to seriously compromise the whistleblower protections we used to have so that they can target anyone they see as a threat to their profit margin. I actually think the NFL is doing the right thing in not copying what is going on elsewhere.

    As for the notion that whistleblowers are protected because those that retaliate against them will be punished, you really ought to know better Mike. If the whistlebower(s) are outed, and if their job is in any way related to the team, they will be completely black listed. Not just when it comes to the Saints, but any team in the league. Oh, and no one would be punished for doing so. No matter what the rules are, the team can either fire them and give an unrelated reason for it (even though everyone will know why it happens), or they can simply make the whistleblower’s lie a living hell until they quit. Once that happens, it’s easy enough to simply not hire someone.

    So, the whistleblower feels a duty to come forward about something troubling, and in return their ability to earn a living is seriously jeopardized…and that’s not even taking into consideration what some of the more extreme fans might do. Players have had property damaged and lives threatened over poor plays, and refs have had the same happen because of unpopular calls. Do we really need to open up whistleblowers to this additional threat. If a whistleblower turn out to be a liar trying to cause trouble for others, then you can publicize their actions and punish them. Aside from that, let them keep their anonymity. Judge the evidence on its own merits.

  11. Goodell has dragged this bounty crap mess on for 5 long months and how can any sane person believe he will do things fair now and correct his blunders and mistakes…he has to prove intent to injure and that is nearly impossible to do…Saints had a pay for performance program confessed by Greg Williams which he apologized for but Saints never had a bounty program…Saints Brass was fined 500K and lost draft picks, that is a severe and justified punishment for that salary cap violation and on top of that he suspended coaches and GM…Goodell has done enough damage, but still wants more blood from Saints…It’s obvious that Goodell has a personal vendetta against Saints, he lost ruling and closure needs to be implemented asap…Goodell is a moron and this fight will not end anytime soon…This commissioner will not let it go until he has his way….Just sad

  12. “IF”…big “if”… Goodell was smart, he would see this as his golden opportunity to rework his public image and that of the NFL, from that of egotistical despot to that of a benevolent and compassionate”father”, come to an agreement, and MOVE ON! The alleged “bountygate”has been a black eye on the NFL and will follow football history with the league being of questionable ethics when dealing with bigger issues down the road, namely the concussion allegations by the players, the league’s integrity with regard to the referee strike, and the CBA. This is a “get out of jail free” card for the league if they can put their petty control issues aside and begin putting the future of the NFL as a priority.

  13. Realistically speaking, Goodell isn’t likely to appoint any hearing officer other than himself. He would undoubtedly view that as an abdication of his number one job responsibility—i.e., “protecting the shield,” which necessarily involves protecting the game’s INTEGRITY as well as PLAYER SAFETY.

    From a practical standpoint, even if the league were to offer the accused players a rehearing, it’s unlikely the parties would be able to agree on the terms and conditions (e.g., confidentiality, etc.) of any such hearing.

  14. “Too much of the 50,000 pages of evidence has been hidden from the players…”

    Actually too much of the 50,000 pages of evidence is not evidence at all. Florio, you are starting to falter again, Goodell shot his wad, there is no “evidence” just a delusional mind.

    The “new” suspensions will not come down next week, if ever. Goodell cannot issue suspensions for salary cap violations, which is what the panel has decided the “pay for performance” program in essence was. (I actually don’t even agree with this unless there was money put into the pool from the Saints ownership itself and there has been no “evidence” of this at all and not even an allegation of such.)

    If Goodell decides to try to issue suspensions based on a “bounty / intent to injure” scheme, his ruling will be reviewed by an independent third party so he will have to present real proof of such and not just wave his hands and shout “50,000 pages of evidence” it just wont fly.

    Goodell needs to find a way to end this gracefully, he can fine the players and this is something he has absolute authority to do. If he tries for suspensions, he will open a serious can of worms and risk getting slapped down hard by Judge Berrigan. He also needs to make the Vilma defamation case go away, if not Vilma will win his case and Goodell will eventually be fired by the owners of the NFL.

  15. I’m sorry, but whistleblowers should not be revealed to satiate the rabid NFL fans and media. It’s easy to say that if they are retaliated against, those that retaliate will be punished, but in today’s world it’s not so black and white. These whistleblowers will be unofficially blacklisted and ostracized, and there is no punishment for something like that. Jeremy Shockey had a productive, healthy year for the Panthers last year, without incident, and can’t get a call for a job. Meanwhile, Warren Sapp got an extension on his TV contract. I’d rather the suspensions be lifted than destroy the life of a guy that tried to do the right thing.

  16. Maybe Goodell should let them all play this season under the condition that any opposing player who injures them gets 1 million dollars.

  17. Gooddell needs to hang up his cleats on this one.

    He’s already gone pretty deep into the grave with it, on and on and on about 50,000 pages of documents in proof, but from what’s been seen in the media and by the players, there’s about 49,999 pages of lawyer-speak and 1 page that the courts laughed out of there.

    If you have proof, show it and suspend them and the public will be on your side.

    If you don’t, drop it and let it go away as quickly as possible, because you’re losing, Roger. You’re losing pretty bad right now, and it’s only gonna get worse.

  18. Good stuff. Thanks. Don’t see the league in a hurry to do any of this, as just holding the possibility of suspensions over their heads reduces their future contract opportunities. Effectively punishing them. Also since their case appears so incredibly weak. Curious how fast this will transpire. The saving of face (i.e., Goodell) has to be a big factor in all of this.

  19. Regarding re-writing letters in Fujita’s case the letter states that he was involved in bounty activities in 2010 when he played for the Browns. What will they say, it was a TYPO?

    Also if the league contends that they have “warned” the the team about alleged bounty actions that occurred in 2009, and werent liable until the league decided the players had lied which was when, 2011? What year did the league actually, alledgedly “warn” the players?

    The above was just one example.

    Also, How many plaintiffs ever get a second crack at a case they have lost without it being an appeal? In fact they lost the appeal, and it appears that the court is training the NFL on how to properly stick it to defendandts which seems to be a conflict of interest or a bias in its own right. An apeal ofan appeal of an appeal.

    but maybe thats legal I don’t know

    I don’t know if any of this makes sense, but this is how it looks to me

  20. This post makes me even more impatient actual, regular season, football.

    I hate the Saints but this bounty things needs to die already.

  21. Why does this seem to be a case where they are allowing the prosecution to reconstruct and make rules up as they go along, so it fits what they are really trying to accomplish, and that is to just make a statement that the NFL cares about player safety. The penalties are grossley out of proportion. The league has been accused of re-wording pay-for-performance as being a bounty already. Are they writing the dictionary of symantics as they occurr? And then say this is what it is, we’ve decided. No other court would allow this On-the fly behavior its unconstitutional. It twists my insides thinking about how disgusting it is. (forgive my spelling)

  22. I won’t try to hide the fact that I’m a huge Saints fan. And, I’ve been one my entire life. So, I’m going to acknowledge that I’m not impartial. With that being said I’ve watched this unfold from the beginning. When this first started I have to admitt that I found it a little funny. I even made a joke about it. But, now I find it distrubing. For a moment let’s forget about the bounty issue. If any of us were to be accussed by our employer of doing anything wrong and then get discplined by that employer without having any proof of what we were being accused of provided, I doubt any of us would accept such punishment without disputing it. I’m confused as to why all those who belive that the Saints are guilty of what they are being accused of would expect the saints to take thier punishment without fighting it. Now, concerning the actual charges. I’ve heard from those who believe that the Saints are guilty because the coaches admitted to the existence of a bounty state, the if the coached admitted to it then it must be true. The problem I have was that it wasn’t made clear exactly what they were admitting to. The statements were vague at best. What I believe will happen is that this issue is over. The NFL will not want to take away from the season by continuing this fight. As far as the reality of the bounty program is concerned, I really don’t know if it was real. And, at this point I don’t think that it matters. But, I really believe that it ends hear. And, can I suggest to the Saints hatters losing our coach for the year is nothing to sneeze at.

  23. I hope Berringer jumps in quickly and says enough is enough before they bastardize the legal system. She should say that what you ave presented thus far as evidence just isn’t substanial, and proclaim the innocence of the players and the coaches, and set them free.

    Its almost like the NFL is writing a script for a hollywood movie, creating at will whatever the storyline is they want along the way.

  24. To me the NFL and commissioner Roger Goodell should count it as a loss and come with a better plan next year because this plan is not going to work it going to make matter worse. So Roger Goodell you just got beat at your game just call it quits don’t dig a bigger hole what’s already been dig by you. The owners need to find a new commissioner if you refuse to give up it’s over.

  25. It’ll be a short lived victory for Vilma and company. Morbidly curious to see how this dance macabre plays out.

  26. The Great “Concussions are killing retired players” diversion by Goodell continues.

    Anybody who defends Goodell is a fan of a team he has not screwed yet.

  27. Okay, so they had a pay for performance pool (only 31 other teams had similar pools). I think it’s chicken**** that they’re hiding whatever evidence they think they have behind the whole “whistleblower” thing. What’s more important, players’ reputations or protecting mythical whistleblowers? If you have evidence that they were injuring for cash, COME ACROSS WITH IT. If all it is is a cap issue (extra cash for making big plays), say so, suspend ’em for a few games and move on. If these concussion lawsuits hadn’t been in play, we wouldn’t even be talking about this right now. I could be a Falcon fan and I would be sick of hearing about this.

  28. Revealing whistleblowers would be a huge mistake.
    You would subject them to exposure to violence and backlash from certain factions of the general public.

  29. one question is…

    Damn, you really cant punish someone on rumor and innuendo and some documentary footage…you really need actual evidence?

  30. I could care less about this bounty gate thing – you can’t tell me that there isn’t a single team in this league that the players don’t have really bad intentions when they tackle/sack a quarterback or player. To me this is about a commissioner with an axe to grind – who doesn’t want to lose. I think the embbarrasement done to the team and coaches was enough…let it end.

  31. Stinking players have too much power on top of too much money. This is sports and corrupt lawyers don’t belong in the punishment equation. The NFL needs to be able to punish wrongdoers without some jerky lawyer whining about precise wording. Goodell had better get the wording correct to properly punish those who participated in Bountygate.

    Stinking Saints should be banned from the playoffs for a few years to send a clear message to all teams that cheating will never be tolerated in the NFL.

  32. To those who say “It was only a pay for performance program, not a bounty”:

    Judge Berrigan has already agreed with the NFL that “pay for performance” is a “bounty”.

    To those who say that “all teams have a pay for performance program”:

    Most of you have said countless times that you want to see the evidence.

    Well, before you convict 31 other teams using only your opinion – I want to see the evidence that “everyone” did it.

    Using the “everyone did it” defense is an child’s excuse – and not a very good one at that.

    So here’s what we know:

    1. The Saints fans have admitted to “pay for performance”.

    2. The Saints players have admitted to “pay for performance”.

    3. The Saints coaching staff have admitted to “pay for performance.

    4. Judge Berrigan has stated that “pay for performance” is a bounty.

    Once the NFL clears up a few minor procedural errors – as directed by the appeals panel – the suspension will be reinstated and upheld.

  33. “If the league is committed to fairness, the league will persuade the persons who provided information the league plans to use against the players to allow their names to be attached to the evidence.”

    That could not be more wrong. This is not a criminal case, so that comparison is moot. If they were to follow this advice, with the NFL being such a boys club, you would never see anyone else come forward in the future…ever.

  34. The league should fix the problem with the sideline comments. They obviously are punishing the wrong guy there and they don’t seem to care.

    As far as Vilma and the rest are concerned I think Goodell should INCREASE the suspensions since the players obviously have no regrets or contrition.

  35. What a f*****g joke. Saints fans, there’s still an asterisk next to that SuperBowl win and there always will be.
    That’s funny. I’ve yet to see one anywhere, save for the Vikings fans that are still bitter about their classic choke job.

    I keep looking for an asterisk on their Super Bowl banner. Haven’t seen one yet. I’ve seen the Lombardi trophy up close and don’t see one on it, either. It’s not a tainted trophy, either. Very shiny and nice to look at.

    If only you haters had any clue just how much us Saints fans enjoy laughing at your stupidity.

  36. yes the nfl has won court cases multiple times. latest being the star caps. the monkey in charge of the players union always files in a state that helps them. starcaps was done in minn where the judge was 100% for the players. not till the case got to st louis did the nfl win. The nflpa filed in taint country hoping the judge would love the taints. she did but the appealt court beat her to it. there ruling gives the nfl a win in 2 ways. first this will throw out vilmas case. second the punishments have to be rewrote and the appealet court did not 1 time say the penaltys were wrong. just the way it was worded. the end of the taints is near.

  37. To those who say “It was only a pay for performance program, not a bounty”:

    Judge Berrigan has already agreed with the NFL that “pay for performance” is a “bounty”.

    To those who say that “all teams have a pay for performance program”:

    Most of you have said countless times that you want to see the evidence.

    Well, before you convict 31 other teams using only your opinion – I want to see the evidence that “everyone” did it.

    Using the “everyone did it” defense is an child’s excuse – and not a very good one at that.

    So here’s what we know:

    1. The Saints fans have admitted to “pay for performance”.

    2. The Saints players have admitted to “pay for performance”.

    3. The Saints coaching staff have admitted to “pay for performance.

    4. Judge Berrigan has stated that “pay for performance” is a bounty.

    Once the NFL clears up a few minor procedural errors – as directed by the appeals panel – the suspension will be reinstated and upheld.
    Countless current and former players from other teams have already stated that pools exist on every NFL team.

    Giants players have admitted to targeting Kyle Williams in the NFC championship game because of his concussion issues. That alone is more credible evidence against them than anything that the NFL has currently put forward against the Saints.

    The NFL can’t even clear up who said what on the Hargrove tape, nor can they decide which game that the Saints supposedly carried out their cart off hits in. I’d say that they have a little more than a few ” minor procedural errors.”

    Goodell will likely reissue the suspensions. Then he’ll get undercut again. He’s starting to look like those desperate gamblers I see every day around town. The ones that are losing badly, yet they keep reaching into their wallets, hoping for a lucky strike that pulls them back ahead. Like them, he may luck out but chances are far greater that he just keeps losing.

  38. The Judge told both sides to settle, instead they continue with this nonsense. I would think that the weight of importance for a person earning a living trumps keeping witnesses anonymous.

  39. Do the Saints have to waive players on the 53 man roster as a result of this ruling? If they must waive a few players and if the suspensions are returned on Monday it could really hurt the team.

  40. @Mike – you are confusing the role of the whistleblower with the role of a plaintiff. The whistleblower is not an “accuser” you are supposed to “face” in an adversarial proceeding. The whistleblower is someone who handed over inside information at great risk to themselves. Offering to keep their name confidential is one of the few methods that can be used to encourage whistlebblowers to come forward. Normally, once their names are known, their careers are ruined, as other employers (in this case other teams) won’t hire them.

    In my job as a health insurance fraud examiner, we value the confidentiality of the whistleblower over all other considerations.

    Andy Prough, CFE
    Kyle, TX

  41. 1. Whistleblowers should be protected. Media is biased against this because it makes their job harder. More info = more stories

    2. Players should be suspended. They clearly had money changing hands and clearly tried to hurt other players. Now they try to get off on technicalities. What are they teaching the youth who worship them?

    3. Goodell should adjust discipline process. Have a team of lawyers write up guidelines and make them public. Have former players and league reps manage discipline. Goodell should have a high-level voice & be involved PR-wise….that’s it

    4. Saints fans…..stop being annoying homers. It’s embarrassingly stupid.

    If the Saints Coaches and players had complied with the League when they quietly investing the 1st time…. none of this would have happened. They pissed off the League and had a ton of bricks come down on them…. that’s normal.

    The twist gets harder when you don’t say Uncle

  42. The last comment assumes that the league’s tale is correct.Except possibly for ONE tackle on Favre-and I’ve seen similar many times-no other film study has even hinted at proof of that.

    Re; whistleblowers, the obvious question is are they WITNESSES? If you have a statement of a whistleblower and that is evidence you are relying upon, you cannot keep his identity secret while asserting the truth of what he says. This is basic. In any non-star chamber proceeding,the accused is entitled to impeach him by showing bias, mistake, or the lack of a presence when the offense was committed, just for example.

  43. A lot of crybaby vikes fans on here. THE 2009 SEASON IS OVER!! The Saints won the SB the vikes lost the NFCCG. Brett Farve is not coming back! GET OVER IT!!!

  44. I hate the Vikings AND the Saints.

    The saints marred and muddied a game that I love. There isn’t a “death sentence” in the NFL, but there should be.

    3 year ban from the playoffs, no draft picks for two years, and every coach should be suspended until further notice.

    That would stop cheating pretty quickly.

  45. Fact is do you think a judge WANTS to rule in favor of an employee? Its a lot easier to rule for big business. But if Goddell had the proper evidence that the players were WRONG then this would never be an issue. He is a liar and a fraud and he damaged these guys careers permanently just to make a statement.

  46. @awl1998 – correct – often, the whistleblower is not the testifying witness. His/her information is used to help locate evidence and develop the case.

    However, if the person were to testify in an adversarial hearing, then of course their identity would most likely be made known and the defense would have an opportunity to cross-examine.

    But, if the NFL is claiming that its “testifying witnesses” are “whistleblowers”, then they are probably simply mis-applying the term. I guess we’ll find out a lot more if the full case ever makes it to court.

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